Considerations for Travel to Iran to Explore Relaxed Trade Opportunities

Friday, September 2, 2016

Before booking your airfare, be mindful of these potential issues.

In light of liberalized trade with Iran made possible by the Office of Foreign Assets Control’s (OFAC’s) General License H and the relaxation of US secondary sanctions, personnel of a non-US company, whether or not owned or controlled by a US parent, may be considering travelling to Iran to explore potential business opportunities. Here are some key points to consider as you make your plans.

Travel to Iran by US Persons Is Permitted

An OFAC General License provided in 31 CFR § 560.210(d) authorizes travel to Iran from the United States or by US Persons (US citizens and US permanent resident aliens]) from outside the United States to do market research or gather business opportunity information. This authorization includes

importation or exportation of accompanied baggage for personal use;

maintenance within Iran, including payment of living expenses;

acquisition of goods or services for personal use in Iran; and

arrangement or facilitation of such travel, including air, sea, or land voyages.

US State Department Warning for Travel to Iran

On August 22, the US Department of State (State Department) reissued a travel warning for Iran that reiterates and highlights US citizens’ risk of arrest and detention, particularly dual national Iranian Americans. Iranian officials continue to detain or prevent foreigners (in particular, dual nationals of Iran and western countries, including the United States) from leaving Iran. The State Department says US citizens traveling to Iran should very carefully weigh the risks of doing so and consider postponing their travel. The State Department additionally instructs US citizens who reside in Iran to closely follow media reports, monitor local conditions, and evaluate the risks of remaining in the country.

The State Department advises that Iranian authorities continue to unjustly detain and imprison US citizens, including students, journalists, business travelers, and academics, on charges that include espionage and posing a threat to national security. Iranian authorities have also prevented a number of Iranian American citizens who traveled to Iran for personal or professional reasons from departing, in some cases for months.

The US government does not have diplomatic or consular relations with Iran, and therefore cannot provide protection or routine consular services to US citizens in Iran. The Swiss government, acting through its embassy in Tehran, serves as a protecting power for US interests in Iran. The Foreign Interests Section at the Swiss Embassy provides a limited range of consular services that may require significantly more processing time than at US embassies or consulates.

The Iranian government does not recognize dual citizenship and will not allow the Swiss to provide protective services for US citizens who are also Iranian nationals. The Iranian authorities determine a dual national’s Iranian citizenship without regard to the dual national’s personal wishes. Consular access to detained US citizens without dual nationality is often denied as well.

Loss of Visa Waiver Privileges for Entry into the United States by Non-US Citizens

The US Visa Waiver Program (VWP) Improvement and Terrorist Travel Prevention Act of 2015 (the Act), which took effect in January 2016, has adversely affected some travelers to Iran who wish to enter the United States. Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:

Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country)

Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria

These individuals will still be able to apply for a visa using the regular immigration process at US embassies or consulates.

As of January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated that they hold dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked.

The US Department of Homeland Security’s secretary may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include

individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of international organizations, regional organizations, and subnational governments on official duty;

individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of a humanitarian nongovernmental organization on official duty;

individuals who traveled to Iran, Iraq, Sudan, or Syria as a journalist for reporting purposes;

individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and

individuals who traveled to Iraq for legitimate business-related purposes.

The Department of Homeland Security does not specifically define what travel to Iran for “legitimate business-related purposes” means, how the department applies the definition, or what evidence is necessary to sustain such a claim and successfully receive relief. Anecdotal evidence suggests that administrative avenues for relief from the Act’s provisions to enter the United States after travel to Iran for “legitimate business-related purposes” are obscure. Travelers to Iran who want to enter the United States and require a visa to do so should apply through the routine visa application process at their appropriate US embassy or consulate and not expect rapid administrative agency relief for the effects of the Act.

Louis Rothberg represents US and international enterprises in export license compliance and national security-related matters. Clients seek his counsel in matters related to munitions and dual-use export controls, economic sanctions and embargoes, and acquisitions in the United States by foreign persons concerning the Committee on Foreign Investment in the United States (CFIUS). Louis has experience with ITAR and EAR export controls, and with domestic and non-US company compliance with Office of Foreign Assets Control (OFAC) regulations involving US embargoed countries...

Marynell DeVaughn represents US and international clients in national security and international trade law matters, such as counseling clients on the Export Administration Regulations (EAR), encryption export controls and regulations, International Traffic in Arms Regulations (ITAR), economic sanctions and trade embargoes administered by the Office of Foreign Assets Control (OFAC), Foreign Corrupt Practices Act and anticorruption, military exports and defense offsets, antiboycott regulations, and the Committee on Foreign Investment in the United States (CFIUS). She...

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